Quashed

Shri. Kabir Abbas Jamdar and Anr. v. Shri. Sayyad Abbas Jamadar and Ors.

Bombay HC26 Sept 2023WP/1871/2018

Case brief

AI extract

What is this about?

This writ petition challenged the trial court's order rejecting an application to amend written statements in a partition suit. The High Court held that the explanation tendered constituted due diligence under Order 6 Rule 17 Proviso II CPC. Consequently, the impugned order was quashed, and the amendment was partly allowed except for the paragraph withdrawing an admission.

What did the court decide?

Impugned order of Civil Judge ordering rejection of amendment application was quashed and set aside. Application for amendment was partly allowed.

Shri. Kabir Abbas Jamdar and Anr. Vs Shri. Sayyad Abbas Jamadar and… — Partition | Bombay HC (2023)

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48-wp1871-2018.doc

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VRJ

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1871 OF 2018

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Kabir Abbas Jamadar & Anr. … Petitioners V/s.

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VAIBHAV RAMESH JADHAV

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Digitally signed byVAIBHAVRAMESH JADHAVDate: 2023.09.2713:12:59 +0530

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Sayyad Abbas Jamadar & Ors. … Respondents

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Mr. Vikas M. Mali for the petitioners.

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CORAM : AMIT BORKAR, J.

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DATED : SEPTEMBER 26, 2023

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P.C.:

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The petitioners are challenging order dated 6^th November 2017 rejecting application for amendment of written statements mainly on the ground that the amendment withdraws admission given by the defendants.

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It appears that the respondents filed suit for partition and separate possession. The defendants filed a written statement contesting the claim of the plaintiffs.

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On 17^th January 2017, the petitioner No.1 who is original defendant No.2 before the Trial Court filed an application for amendment of written statements to incorporate legal pleas.

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The Trial Court rejected the application. This Court while issuing notice on 4^th April 2018 recorded a statement of the advocate for the plaintiffs that the petitioner No.1 is not pressing

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48-wp1871-2018.doc

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inconsistent plea and, therefore, is omitting paragraph No.7 of amendment application.

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Office remark dated 27^th August 2018 indicates that respondent Nos.1 to 7 are duly served. Despite service, respondents have failed to appear either personally or through advocate. On 1^st August 2023, the advocate for the respondents made a statement that she has returned papers to the respondents. On 28^th August 2023, this Court noted absence of respondent No.1. However, in order to grant last opportunity to respondent No.1, adjourned the matter to 4^th September 2023. It was made clear that on the said date respondent No.1 fails to appear the petition will be decided on merits. Thereafter, on 4^th September 2023, none appears for the respondents. Today also none appears for the respondents.

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On consideration of the impugned order, it appears that the Trial Court rejected the application for amendment on the ground that the petitioners have failed to prove due diligence and the amendment withdraws admission given in favour of the plaintiffs. On the point of due diligence, in my opinion, the explanation tendered in paragraph No.1 of the application for amendment can be treated as due diligence under Proviso II Order 6 Rule 17. Since the petitioners have restricted amendment of written statements to legal pleas, the application below Exhibit-80 except paragraph No.7 of the amendment application deserves to be allowed. Hence, following order:

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a) The impugned order dated 6^th November 2017 passed

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48-wp1871-2018.doc

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by the Civil Judge, Junior Division, Palus in Regular Civil Suit No.13 of 2013 is quashed and set aside.

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b) The application below Exhibit-80 is partly allowed. Except proposed amendment in paragraph No.7 of the amendment application, rest of the amendment is allowed.

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The writ petition stands disposed of. No costs.

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(AMIT BORKAR, J.)

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Shri. Kabir Abbas Jamdar and Anr. v. Shri. Sayyad Abbas Jamadar and Ors.

Case brief

What is this about?

What did the court decide?

Shri. Kabir Abbas Jamdar and Anr. v. Shri. Sayyad Abbas Jamadar and Ors.

Case brief

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What did the court decide?

What the court decided

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